Legal Analysis and Order: Trial Unlikely After Fulton Trump Dismissal

Trial Before Election Unlikely After Fulton Dismissal

Link to the Order Dismissing Charges

Scott McAfee dismissed six charges against Trump and 18 charges against others. However, Georgia Superior Court Judge Scott McAfee’s partial dismissal of the indictment still leaves much of the indictment intact.

Bottom line: The order did not recuse Fani Willis, she has the right to appeal. If this is done the trial will not proceed before the election. She may wish to proceed on remaining counts and race to trial but this is not a good strategy. Other legal challenges will prevent a trial from happening before the election.

The defendants challenged the indictment for sufficiency to ensure it met Due Process’s constitutional mandates and the Sixth Amendment. They both require that an indictment be sufficiently detailed to appraise the accused of the nature of the charges, to defend them, and to plead double jeopardy if there was a subsequent prosecution.

The charges were Solicitation of Oath by a Public Officer and Violation of Oath By a Public Officer.

The factual allegations were that the Defendants solicited elected members of the Georgia Senate to violate their oaths of office by requesting them to appoint presidential electors unlawfully. The indictment also alleges that they called a special session to appoint unlawful electors, solicited members of the House of Representatives, violated their oaths of office by imploring them to appoint electors, and requested that the members defy the election results.

The critical flaw in the indictment was that it did not specifically state which oaths the Defendants violated and what actions were taken to break the oath. The indictment does incorporate the Constitution, but this is simply too vague of an allegation.

You can’t indict someone for “violating the constitution”.

The Judge correctly determined that “oath-breaking” charges must be more detailed than simply allegations that an oath was broken due to a violation of the Constitution. More is required.

This ruling will definitely be appealed to the Georgia Supreme Court and will definitely delay the trial unless Fani Willis or successor counsel elects not to appeal.